Xorman v. Va.-Pocahontas Coal Co.

• Decision Date: 13 December 1910
• Citation: 68 W.Va. 405
• Parties: Xorman v. Virginia-Pocahontas Coal Company.
• Court: West Virginia Supreme Court

68 W.Va. 405

Xorman

v.Virginia-Pocahontas Coal Company.

Supreme Court of Appeals of West Virginia.

Submitted September 3, 1909.

Decided December 13, 1910.

1. Master and Servant Injury to Servant Negligence Violation

of Statute.

A violation of the statute inhibiting the employment of boys under fourteen years of age in coal mines constitutes actionable negligence whenever that violation is the natural and proximate cause of an injury.

2. Same Injury to Servant Proximate Cause Violation of Statute.

The violation of the statute is rightly considered the proximate cause of any injury which is a natural, probable, and anticipated consequence of the non-observance.

3. Same Illegal Employment of Child Injury Liability.

The employer is not, as a matter of law, chargeable with all injuries that result during the unlawful employment. He is only liable for those injuries against which the statute is intended to guard.

4. Same Assumption of Risk Illegal Employment of Child.

If the employment is unlawful, the servant cannot be held to have assumed the risks incident thereto,. including the risk of injury by fellow servants.

5. Same Injury to Servant Unlawful Employment of Child Ac-

tion Contributory 'Negligence.

Contributory negligence on the part of a boy injured in the unlawful employment may avail the employer as a defense, unless it be the same that must reasonably be anticipated as a probable consequence of the non-observance of the law.

6. Same Injury to Servant Unlawful Employment of Child Action Misrepresentation of Age.

The fact that the boy misrepresented his age does not preclude him in an action for damages caused by violation of the statute.

7. Same Unlawful Employment of Child Liability.

The employer must secure the affidavit of the parent or guardian, otherwise he will not be protected as to the age unless he can establish that the boy is actually over fourteen years.

Error to Circuit Court, McDowell County.

Action by James Xorman agaiust the Virginia-Pocahontas Coal Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

W. B. Kegley and Anderson, Str other & Hughes, for plaintiff in error.

Ritz & Litz, for defendant in error. Robinson, President:

By the statute law-of this State it is provided: "No boy under fourteen years of age * * * * * * * shall be permitted to work in any coal mine, and in all cases of doubt, the parents or guardians of such boys shall furnish affidavits of their ages." Code, Supplement 1909, diaper 15H, section 17. Eollowing this inhibition, punishment by fine or imprisonment is prescribed to be imposed upon any operator, agent or mine foreman who shall be convicted of knowingly violating the mandate. This statute is enforceable as a criminal or penal one. Its terms prescribe no other liability for its violation than fine or imprisonment. The case which we are now to consider involves the applicability of this statute to a suit for damages arising from an injury alleged to have been caused by its violation.

Though the statute provides only for a fine or imprisonment, still an action lies for damages caused by its non-observance. The plaintiff, if his allegations are true, is one of a class for the benefit of which the statute was enacted. Any boy under the age of fourteen years who is injured by reason of his unlawful employment in a coal mine may maintain a civil action for damages in the premises against the mine operator, agent or foreman 'who has failed to observe the law and thereby caused the boy's injury. "One who disobeys the law subjects himself to any proceeding, civil or criminal, which the same law has ordained for the particular case. In the absence of which ordaining, or in the presence of it when not interpreted as excluding other methods, he is liable to those steps which the common law has provided for cases of the like class; as, to an indictment, or to a civil action, or to both, according to the nature of the offending. The civil action is maintainable when, and only when, the person complaining is of a class entitled to take advantage of the law, is a sufferer from the disobedience, is not himself a partaker in the wrong of which he complains, or is not otherwise precluded by the principles of the common law from his proper standing in court." Bishop on Non-contract Law, section 141.

Many and varied are the views that have been expressed as to the consideration of evidence in regard to violation of a statute in cases like the one at hand. It is not our purpose to cite and review the decisions on the subject. In explanation of the state of judicial holding in this behalf, it suffices to quote from two well known texts: "Upon this' subject one idea is, that the hiring of a boy under twelve years of age in violation of a statute declaring it to be a misdemeanor, constitutes negligence per se, such as will render the employer liable for injuries suffered in consequence of and in the course of the employment. Another view is, that to employ a child in violation of such a statute to operate a dangerous machine is evidence of negligence in case the child is injured while so working, because the statute indicates that such children arc unfit by reason of their immaturity and indiscretion to be so employed. But the view which more nearly comports with juridical analogies is, that such an unlawful employment of a child does not per se constitute negligence which will render the employer liable for injuries to the child, where such employment is not the direct or proximate cause of the injury." IV Thompson on the Law of Negligence, section 3827. "Although the defendant's violation of a statute or ordinance and the plaintiff's injuries consequent thereupon be shown, the former will not be liable merely because his act constituted a violation of a state or municipal law, but only if it proximately caused the injuries complained of. It has been held indeed that the same principles as to natural and proximate cause are applicable whether the act alleged to constitute negligence was a violation of a statutory duty or the violation of some duty under general principles of lawr. And even though violation of a statute or ordinance is held to be negligence per se, causal connection between the act and the injuries must still be established, winch latter requirement shows conclusively that 'where courts lay down the rule that the violation of a statute or ordinance is negligence per se, they do not mean actionable negligence because actionable negligence includes the notion of proximate cause. * * * * * * The cases are notoriously in conflict on the point under discussion if their language alone is considered. The statement that the violation of a statute or ordinance is negligence per se is certainly erroneous if actionable negligence is meant, and misleading if only negligence which is not actionable, or negligence 'without results', is intended. So it is believed to be an erroneous view that the violation of a statute or ordinance is even prima facie evidence of actionable negligence, in the sense that the jury is bound so to regard it. The true rule is believed to be and comparatively few cases when carefully studied will be found to be in conflict with it that the fact that the defendant's act complained of was a violation of a statute or ordinance is merely a circumstance to be considered by the jury on the question of negligence, except when the court can say as a matter of law that the consequence against which the statute or ordinance was-intended to provide have actually ensued from its violation." 21 Am. & Eng. Enc. Law, 480.

The point is one of first instance with us. We adopt the view that seems consonant with reason. Briefly stated, it is this: The violation of the statute is actionable negligence whenever that violation is the natural and proximate cause of an injury. The true question to be determined in an action based upon a failure to obey a statute like the one under consideration is: Did the unlawful employment cause the injury? The trial of the case must be guided by this question. If the injury complained of is a natural and probable consequence of a violation of the statute, then that violation is correctly taken as the proximate cause of the injury. If the very injury has happened which was intended to be prevented by the statute law, that injury must be considered as directly caused by the non-observance of the law. But if the injury is one that happened by causes independent of the violation of the statute, it is not actionable on the basis of that violation. If an intervening event against which the statute evidently did not intend to provide, and the appearance of 'which was not anticipated by the spirit and purpose of the act, has in fact caused the injury, that event is plainly the proximate cause.

The statute does not provide that an employer shall respond in damages for all injuries sustained by a boy under fourteen years through employment in a coal mine. It merely provides that the employer shall be guilty of a misdemeanor and punished therefor. While the boy may have a civil remedy for injury sustained in the unlawful employment and resort to the violation of this statute for evidence of the negligence which caused the injury, still the statute does not say, or even imply, that the employer shall respond in damages other than those given by the common law. The statute does not put an absolute liability on him for civil damages. It puts no liability on him in that regard. But it may be shown that he is liable for damages at the common law for an injury sustained by reason of its violation. So as a matter of law it cannot be said that the employer is chargeable in damages with all injuries that result. The evidence must prove that he is chargeable that the injury indeed proceeded from the unlawful employment,

But the doctrines in relation to assumption of risk and of fellow servancy do not apply, if the evidence establishes that ...